SELECT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE díospóireacht -
Friday, 4 Apr 2003

Vol. 1 No. 14

Freedom of Information (Amendment) Bill 2003: Committee Stage (Resumed).

SECTION 20.

Mr. R. Bruton

I move amendment No. 84:

In page 14, lines 14 to 26, to delete paragraph (b).

We are dealing, essentially, with the section of the original Bill relating to commercially sensitive information. My understanding of the Minister's amendment to that section is that he is introducing the option to refuse to disclose the existence or non-existence of a record which might be deemed commercially sensitive. I tabled this amendment to question whether this additional power is needed. I can understand why one might not want to reveal the contents of commercially sensitive material, but it is more open to doubt as to whether one should be able to refuse to reveal the existence of such material. Given that there should be a general presumption of openness in this Bill, I question this provision.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. M. Ahern)

I cannot accept this amendment, the purpose of which would be to delete the refusal to confirm or deny provision regarding commercially sensitive information, where the mere acknowledgement of the existence or non-existence of the record could reveal the sensitive information contained in the record. This is in line with other refusal to confirm or deny provisions in the existing Act and in this Bill. I regard the provisions as essential for the proper protection of commercially sensitive information.

Mr. R. Bruton

To clarify, the section the Minister is inserting seeks to provide that the head of the body concerned will refuse to disclose the record if doing so has an effect specified in subsection (1). There is no effect listed in the subsection, which lists simply a series of matters such as trade secrets. What is the effect the head will have to consider when he or she comes to decide whether to conceal the existence of a record? What is the harm test or public good test that he or she will apply? There is a mistake in the drafting which may be technical, but I do not see a list of effects in section 27 as drafted.

Ms Burton

There is no problem with section 20(a) which puts into place the current practice outlined in the freedom of information manual provided to civil servants. Deputy Richard Bruton’s problem is with section 20(b) which provides that a head will not have to disclose whether or not a record even exists. It imposes a blanket of total secrecy. Where Departments deal with commercially sensitive information, such as information regarding sales of assets, we appreciate the need for confidentiality. However, to give a blanket exemption together with the refusal to deny whether or not the record exists means that the existing operation of section 20 becomes much broader. It takes on the aspect of a blanket ban on the release of information which makes it difficult to assess whether or not the head of the body has acted reasonably.

There are important matters involved. The public service is a major generator of contracts in all sorts of areas. As the Minister of State knows, there are lists of contractors and it is important that those who wish to do business with the public service have a reasonable understanding of the nature of the game. If one imposes blanket secrecy, one ends up creating a situation in which people inevitably feel that there is a favoured inside track. Department heads will be able to act unaccountably. Where there is commercially sensitive information it is obviously necessary to be prudent and careful, but if one errs on the side of excessive secrecy, chat starts and one begins to hear about people who have the inside track. It is not good for the Civil Service.

I have no objection to section 20(a), but subsection (b) goes too far. A Department head should be required to show good cause to ensure that it is possible, subsequently, to assess whether or not the decision he or she took was reasonable and fair. In this area, we seek to strike a balance between effectiveness and fairness. Excessive secrecy often leads people to believe there has been an element of unfairness in the way something with a commercial element has proceeded, whether it is true or not.

Caoimhghín Ó Caoláin

We are discussing areas of commercial consideration in terms of Departments and public bodies at all levels from local government up. It is arguable that the tendering process regarding the provision of goods or services is better served where there is access to information to inform not only the potential future interests but the wider public interests regarding decisions taken. It is not always the case that the lowest tender succeeds and we all know what criteria apply to decision making in local government and in Departments. The public interest is served by full disclosure and the presumption must be that unless release can be shown to be against the public interest, information should be provided. The Minister is accommodating refusal to release critical commercial information which should be in the public domain and he is permitting the denial of that information's existence. It is an extreme measure and the notion of the public interest will not be facilitated in any judgment of the value of a freedom of information request under the provision. Deputy Richard Bruton's amendment deserves the support of members. I welcome the Minister of State to the committee and I ask him to facilitate the amendment by deleting the objectionable paragraph.

Mr. M. Ahern

Regarding Deputy Bruton's comments, section 20(1) of the principal Act sets out three tests whereby the head of the decision maker shall refuse. The tests consider the trade secrets of a person other than the requester concerned and commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or which could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The third test concerns information the disclosure of which could prejudice the conduct or outcome of contractual or other negotiations to whom the information relates.

Subsection (3) of the principal Act provides a public interest test and that is retained. The decision of the decision maker is still subject to oversight by the Information Commissioner who can establish whether the provisions of the Acts have been properly applied. The decision is not a blanket decision not to give information or to refuse to confirm or deny its existence, it relates to commercially sensitive areas. It will be up to heads to make the decision and the Information Commissioner will adjudicate on whether they have done their job properly in complying with the Act.

Mr. R. Bruton

My reading of the Bill is different from that of the Minister of State in that section 3 of the principal Act imposes a public interest test on the decision of the head as to whether he or she reveals the information, whereas no such public interest test is applied in the new subsection 4, which states the head, "shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists." This will mean that a record which contains information as described in section 27(1), for example, sensitive commercial material or trade secrets, will not be subject to the public interest test contained in section 27(3). To rectify this, section 27(3) would have to be amended to read, "Subject to section 29, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.” The Minister is unwittingly introducing an obligation not to reveal the existence of a record once it has been established that it contains commercially sensitive information. This goes much further than is justified. A specific and separate public interest test should be included to cover cases of non-disclosure of the existence of a record because in most cases, under the current legislation, the existence of records containing commercially sensitive material would still be revealed. The record in question could, for example, be an application to Enterprise Ireland for a grant. In this case, although the content of the grant application may be commercially sensitive, the Minister would not currently refuse to disclose the fact that it was made on the grounds that it relates to a public body. If one were to go down this road, a significant amount of the business undertaken by the Department of Enterprise, Trade and Employment - the Minister of State’s Department - would be made inaccessible on the basis of this rather spurious defence that it concerns commercially-sensitive information. One would not know what was going on, even in terms of the names of companies submitting applications to Departments or agencies. The amendment is not in the public interest as it proposes to block a great deal of information. If the Minister wants to achieve his stated aims, he will need to further amend the section.

Ms Burton

I found the Minister of State's reply confusing. I understand that under the principal Act, if a request is made under this section, the public body in question must reveal whether the requested record exists even if it refuses to release it. It is then possible for the requester to appeal to the Information Commissioner and the public body would have to provide the public interest reasons for not disclosing the information. This is the current position.

The explanatory memorandum states that section 20 amends section 27 of the principal Act by inserting a provision "requiring that the identity of a requester be established prior to the release of commercially sensitive information. . . . " It is reasonable to require that one should know the identity of a requester as it could, for instance, be a competitor. The explanatory memorandum continues:

. . . and by inserting a new refusal to confirm or deny provision after subsection (3) of the Principal Act. The amendment to paragraph (e) is based on a similar provision in section 28 (personal information) of the Principal Act whereby a public body must be satisfied as to the identity of a requester prior to releasing information that relates to the requester or to the release of which the requester has consented.

The explanatory memorandum makes no mention of a public interest test. It is the extension of the confirm or deny provision which allows the head of a section to refuse to confirm or deny whether a record even exists.

This seems to be a stand-alone amendment and I share Deputy Richard Bruton's views on it. Will the Minister of State tell us what the head of a section is now required to do? I disagree with his previous reply as I do not believe the circumstances he described will arise. A head of a section will, under this provision, have the power to simply refuse to confirm or deny that a record exists if the information it contains is deemed to be commercially or technically sensitive, etc. Giving such blanket powers to the heads of section is not in the public interest, nor is the notion of complete secrecy.

Caoimhghín Ó Caoláin

I allude again to the tendering process and the release of data concerning tender. The disclosure of the detail of a specific tender aside, this section introduces a restriction which provides a facility with which departmental heads at all levels, from local government up to Departments of State, can debar the release of information, even to the point of identifying the list of tenderers in a given situation. Such information should be freed up and the public given the right to know. Access to information aids competitiveness, whereas these proposals could act as a restriction on competitiveness and artificially increase the cost of services and so forth being paid for by the public purse.

The position by which heads "shall" refuse to grant requests and "shall not" disclose to the requester is not in the public interest. It is just one example. Perhaps the public interest is catered for and the Minister of State can discount this particular area of concern. If this is the case, I will bow to that information. I look forward to his reply.

Mr. M. Ahern

Section 20(B)(4)(a) sets out a public interest test which must be applied before the head can confirm or deny. It states:

(4) Where-

(a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (3) do not apply or would not, if the record existed, apply. . .

This is the public interest aspect of the section set out in black and white. The tendering process and the release of information under the Act will remain unchanged as a result of the new section. The procedure currently in place will continue to apply and the Information Commissioner will be entitled to review the decisions of the head at all stages, as is currently the case, and to ensure the provisions of the Act are being properly interpreted.

Caoimhghín Ó Caoláin

The Minister of State outlines that the current position will remain unchanged. The insertion of the words "shall not" imposes a clear diktat with regard to the decisions of the head. This provision will be applied by those who wish to maintain or increase the level of secrecy that applies at all levels. The tendering process is conducted in a secret format, certainly in the instances with which I am familiar, and needs to be freed up to ensure there is open and transparent competition in terms of the provision of services and other material needs at all levels of Government, including local government. I have not gone off on a tangent by highlighting this matter. The purchase of services and materials will result in the greatest outlay of public money, apart from provision of salaries through all the elements of the services. This is a major issue at local government level. Public doubt and concern has always existed in regard to the issue of tendering for contracts and this area needs to be open to greater public scrutiny. I appreciate that it is a valid position to hold, that it is not always best to accept the lowest tender as it may not be the most meritorious application. However, the process should be transparent as this is the only way to discount the rumour machine and the perception among the public that things are not as they should be - always above board.

Mr. R. Bruton

While I do not wish to bog us down unnecessarily, my reading of subsection 4(a) differs from that of the Minister of State. It appears to me that the implication of this provision is that where a record is commercially sensitive and where the head has decided not to release it, he or she shall then refuse to disclose its existence. A separate public interest test is not being applied to the denial of its existence. There is only one test being applied to the request and that is the original one as to whether the information should be revealed. A higher threshold must have to be reached before one would release any information that contains commercially sensitive details but I do not accept that the answer is to deny the existence of this information. Maybe I am just slow on the uptake. It is tricky referring from one section to another but I do not concur with the Minister of State’s claim in regard to the effect of this provision.

Mr. M. Ahern

One has to do a public interest test.

Mr. R. Bruton

On whether it has commercially sensitive content.

Mr. M. Ahern

If a public interest test states that the public must be advised then it will have to be released.

Ms Burton

Sorry, I did not hear what the Minister of State said.

Mr. M. Ahern

A public interest test must be carried out on the request and if the result is that it should be released, then it must be released.

Mr. R. Bruton

If one decides one will not release commercially sensitive information because it might reveal a trade secret or something that might be of advantage to a competitor, then that is not released but one should not refuse to deny the existence of a record which might be involved in an application for a grant, patent cover or to take somebody off the dole. Just because there is commercially sensitive content does not mean the existence of the record should be denied. There should be two public interest tests - with a tougher test being applied in order to deny the existence of the record.

Mr. M. Ahern

A public interest test is to be done.

Ms Burton

Will the Minister of State, in the interests of further clarification, state what happens if somebody applies for information which is deemed commercially sensitive? Does he or she not even get confirmation as to whether the record exists? Under the existing Act he or she could appeal to the Information Commissioner. It appears that this provision of denial has a wider remit. What is the basis of the appeal to the Information Commissioner where information is refused under the provisions of subsection (b)?

Mr. M. Ahern

If a request is made for information and its existence is neither confirmed nor denied then one can go to the Information Commissioner. He or she will adjudicate on the decision and it is up to him or her to decide what to do after that.

Ms Burton

It has changed the relationship fundamentally. Obviously, it is difficult for the Minister of State to provide answers. Can he undertake that by the time we are on Report Stage, the members of the Opposition would get a note explaining in some detail the changes between the existing Act and the new one on the preservation of rights? I accept it is a difficult area. I do not have a problem with subsection (4)(a) but the scope of subsection (4)(b) is too wide. One needs to strike a balance between the right to commercial sensitivity and privilege and the public interest. Will the Minister of State agree to letting us have a report on Monday as to the proposed operation of this measure?

Mr. M. Ahern

I will make a note in regard to section 20(4)(b). There are guidelines set down by the Information Commissioner in regard to the tendering process and there will not be any change in these. The strict guidelines will still be in place. The public interest test will have to be carried out with regard to any information. The Information Commissioner can review the decision that is reached. With regard to the tendering process, in regard to which we all have questions at times, it is important to remember that the commissioner’s strict guidelines are not being interfered with.

Caoimhghín Ó Caoláin

We should let this matter rest, as we are not going to make progress with it, but it is my view that it should be addressed. I do not believe it is in the public interest that there be much secrecy enshrouding this process. Where that is the practice, it gives rise, with or without a basis, to all kinds of questions. We should be trying to eliminate the questions where the public interest is concerned vis-à-vis the finances and the Exchequer.

Chairman

Is the amendment being pressed?

Mr. R. Bruton

In the context of what the Minister of State said, I will withdraw the amendment and resubmit it on the basis of putting a second public interest test in place in the context of a denial of existence of information.

Ms Burton

We could address this by simply adding a public interest test to subsection (b) or making it clear that the earlier provision of a public interest test in the original Act applies to subsection (b).

Mr. M. Ahern

The public interest test is included under the new subsection (4)(a).

Ms Burton

Regarding section 20(b), a small amendment which would make it clear that the public interest test set out in the original Act applies would address some of our concerns.

Mr. M. Ahern

The officials have informed me that they have done so under the new subsection 4(a).

Ms Burton

Where is the public interest test there?

Mr. M. Ahern

It is in the principal Act of 1997.

Ms Burton

The new subsection (4)(a) states, “but to which subsections (2) and (3) do not apply.”

Mr. M. Ahern

That means that the test has been applied. A note will be circulated on this matter.

Amendment, by leave, withdrawn.

Question, "That section 20 stand part of the Bill", put and declared carried.

SECTION 21.

Ms Burton

I move amendment No. 85:

In page 15, line 2, to delete "exists."." and substitute the following:

"exists, and

(b) in subsection (6) by the insertion after ’section 7’ of ’, 17 or 18’.”.

Chairman

Amendment No. 85 has already been discussed with amendment No. 24.

Ms Burton

I forget what the Minister said about amendment No. 24.

Chairman

It has already been discussed. We are not going back——

Ms Burton

This amendment was suggested by the Information Commissioner and will provide that parents of children or people with disabilities could exercise the right to correct inaccurate information as well as the right of access to information. Obviously, I refer to personal files.

Chairman

This was discussed with amendment No. 24, which was in the name of the Minister.

Ms Burton

Could the Minister of State refresh my mind about the response of the Minister?

Chairman

The Minister had inserted amendment No. 24 to deal with the general issue.

Ms Burton

Chairman, are you saying he has accepted it?

Chairman

He tabled amendment No. 24 on that issue.

Mr. M. Ahern

The Freedom of Information Act confers three rights on citizens: the right to access records held by public bodies; the right to have personal information amended where such information is incomplete, incorrect or misleading; and the right to obtain reasons for decisions taken by public bodies affecting the individual. The first of these, the right to access records, can be exercised by parents and guardians and by next of kin. The Minister has already introduced regulations under the relevant section of the Act to enable such persons access records on behalf of relatives who are unable to exercise their rights directly.

However, the other two rights cannot be exercised in this way. Amendment No. 24 will permit the Minister to provide in regulations for the making of an application under section 17 of the main Act for the correction of personal information by the parent or guardian or next of kin of an individual if the individual belongs to a class specified in the regulations.

Amendment No. 25 will permit the Minister to provide in regulations for the making of an application under section 18 of the main Act for reasons for decisions to be provided to the parent or guardian or next of kin of a person if the person belongs to a class specified in the regulations. In each case, as with requests for access to records, such classes would encompass minors, the intellectually disabled and deceased persons.

Amendment, by leave, withdrawn.

Question proposed: "That section 21 stand part of the Bill."

Caoimhghín Ó Caoláin

Earlier, we welcomed the Minister's amendment regarding the rights of parents and guardians and representatives of the deceased. Section 21 allows for the denial of the existence of information and that is not addressed by amendment No. 24. It is a critical deficiency and a further denial of information to the individual citizen, who is, at the very least, entitled to an affirmation or denial of the existence of any document or record. However, this section seeks to extend a climate of secrecy in respect of personal information. It is fundamentally flawed in that respect and this should be addressed by the Minister in the Bill.

Mr. M. Ahern

This section relates to third parties trying to obtain information about individuals. Suppose I was having a contest with a colleague of mine in a constituency and I wanted to find out whether he was in an institution such as Grangegorman so I could use this against him, the section would prevent this. It is not to prevent the people who are entitled to the information but to prevent third parties from obtaining it who could abuse it afterwards.

Caoimhghín Ó Caoláin

What it perpetuates is not the detail but the denial of the right to know if a record exists. It goes further than the release of the information.

Mr. M. Ahern

Section 21 is similar to sections 19 and 20 in that it extends the power to refuse to confirm or deny the existence of a record containing personal information where the mere acknowledgement of the existence or non-existence of the record concerned could undermine the exemption or reveal the sensitive personal information contained therein. The Long Title of the existing Freedom of Information Act accepts the need for strong protection for the privacy of individuals and therefore section 21 is an appropriate amendment which guarantees a more comprehensive level of protection for personal information. An example would be a request for a third party's medical records, in which case the mere acknowledgement of the existence of such records by a public body could reveal sensitive personal medical information about an individual.

Caoimhghín Ó Caoláin

Let us consider the case of a competing colleague instanced by the Minister of State. If I was competing with you, Chairman, and you were making claims about your educational achievements that gave you a demonstrative advantage in putting your case to the electorate and I was to make an inquiry to establish if the claims were true, I would not even receive a confirmation or denial that a record exists, depending on the institution. There were echoes of that in the recent past. It is too much to hold to a view on a denial or affirmation of the existence of a given record or document but the detail is another story entirely.

Question put and declared carried.

NEW SECTION.

Mr. Boyle

I move amendment No. 86:

In page 15, before section 22, to insert the following new section:

"22.-Section 29 of the Principal Act is amended-

(a) in subsection (1), by deleting ’section 28(5)’ and substituting ’section 28(5)(a)’,

(b) in subsection (2)(b), by deleting ’28(5)’ and substituting ’28(5)(a)’.”.

This is a change proposed by the commentary of the Information Commissioner.

Mr. M. Ahern

This amendment, which I note has also been suggested by the Information Commissioner, is not being accepted. This amendment would mean, in effect, that a public body would not be obliged to consult with a person prior to making a final decision to release the personal information of that person to some other person where a public body has decided that it would benefit the individual to release the information concerned. It is not clear to me why a public body should not be obliged to consult in such circumstances. We are, after all, talking about the release of someone's personal information albeit in circumstances where the public body has decided that release would benefit the individual concerned.

The principal Act clearly envisaged that it is appropriate to consult in such circumstances. I have not seen any convincing argument from the Information Commissioner or otherwise why this should not continue to be the case.

Mr. Boyle

I am disappointed the Minister is not willing to accept the opinion of the Information Commissioner in this regard. It follows through from a point made by Deputy Ó Caoláin about the extent to which the net is cast to make sure that information is not provided in certain classes. While everyone would be in agreement about particular classes of information not being available to people requesting them, for example medical information, there are other categories that could and should be available for media and public interest purposes. Deputy Ó Caoláin was citing the example of educational records. It has not been unknown for people in public life to claim they attended institutions, such as the London School of Economics, which cannot be challenged because of the lack of availability of information. The London School of Economics is not an Irish institution but there would be an equivalent in terms of Irish institutions. I once attended a conference at the London School of Economics where I was on the platform. I am thinking of putting in my CV that I once lectured at the London School of Economics.

Chairman

Would that be an advantage or a disadvantage?

Mr. Boyle

We will wait and see. That is precisely the type of example as to why there should not be as tight a restriction as that proposed. I do not accept the Minister's argument. I still intend to press my amendment given that it has been informed by the commentary of the Information Commissioner.

Mr. M. Ahern

I have stated our position and we are sticking with it.

Amendment put and declared lost.

SECTION 22.

Mr. M. Ahern

I move amendment No. 87:

In page 15, lines 6 and 7, to delete "('the specified request')".

This is a textual amendment which removes a redundant defining phrase since a request is already defined in section 29(1) of the principal Act.

Amendment agreed to.

Ms Burton

I move amendment No. 88:

In page 15, between lines 26 and 27, to insert the following:

(b) By the insertion of the following subsection after subsection (6):

'(7) This section shall apply with any necessary modifications to a review under section 14.'.".

This amendment was suggested by the Information Commission and, logically, section 29 should apply to internal reviews as well as to section 7 requests.

Mr. M. Ahern

I will not be accepting this amendment, the purpose of which is to provide for formal third party consultation in accordance with the procedure under section 29 of the principal Act at the internal review stage of decisions. The procedure by which third parties must be consulted is set out in section 29 of the main Act. A request that is subject to section 29 consultation bypasses the internal review stage. In other words, there is a direct right of appeal to the Information Commissioner in the case of a request to which section 29 applies by (a) the requester, if he or she is refused access to third party information, or (b) the third party, if it is proposed to release the third party’s information on public interest grounds. It is possible that an internal reviewer might decide that the original decision maker had erred in not invoking section 29. The option of initiating formal consultation at that stage is not open to the internal reviewer. The absence of formal third party consultation at internal review stage does not, however, affect the rights of the requester or the third party. The procedure in such cases is that the reviewer upholds the original decision to refuse access in order to protect the privacy rights of third parties. The requester then has a right to appeal the matter to the Information Commissioner. This takes at most three weeks.

On the other hand, this amendment would have the effect of adding potentially up to six additional weeks to the existing three week period permitted under the Act for the completion of the internal review. After waiting four weeks for the original decision to be made the requester would then have to wait up to a further nine weeks for the internal review to be complete. Then, if the requester or, as the case may be, the third party, wished to exercise their right to review by the Information Commissioner - a position they would have got to six weeks earlier under the existing Act - the process would take a further period of some months to complete. By any standard, this would be a very protracted procedure for which the benefit either to the requester or the third party would be extremely doubtful.

Ms Burton

The problem with this section is that if operated badly it has the capacity to be a snoop's charter and all types of requests can be made for, effectively, what is extremely embarrassing information or information that is personal to the person and there is no reason why others should have access, in the normal course of events, to that information. Where requests are made for access to personal information the time taken is not that important. It is more important to get it right and to try to be fair to both parties - the person whose information is being requested and the requester. The example was given earlier in relation to the Taoiseach and his educational record.

Mr. Boyle

I did not mention the Taoiseach.

Ms Burton

In relation to the Taoiseach I side strongly with him on this and it is one of the few issues on which I side with him. He went to the College of Commerce in Rathmines and studied accountancy on a part-time basis while working. I have always thought that reflected great credit on him. Like many politicians he did many part-time courses. There are high levels of snobbery involved in trying to put down people who have had much education on a part-time basis over their lifetime as opposed to on a full-time basis. Matters are different if they are inaccurate about their record.

If a request involves somebody in the public eye, such as Deputy Ó Caoláin, the Minister or myself, the person who is the subject of the request will not go to the Information Commissioner because in doing so attention will be drawn to the fact that information has been requested that is personal to the person in question or their family. Any good PR adviser or spin doctor will advise that if the information is released it will be dealt with in a better and more open manner and that to have recourse to the Information Commissioner would be a disastrous move.

A person may, for some reason, have an interest in the file of a fellow civil servant, perhaps following a promotion or poor personal relations. We can all envisage these kinds of situation. In such cases, involving a high level of sensitivity, I would not be adverse to a requirement that more time be allowed, both to the person who is the subject of information and the requester. Badly used, this section would have the capacity to be a snoop's charter. The motto "publish or be damned" comes to mind. If recourse is made to the Information Commissioner, the story that matters will be how the Taoiseach or anyone else refused a request in relation to personal information held on public files. I understand the Minister of State's reply, but to allow more time might not do any harm in the long run when the question is one of personal information.

Mr. Boyle

I am a former student of the Cork Institute of Technology. I do not know where that places me in the pecking order. There are two approaches to this section. One is to provide more time while the other is to recognise that if left unamended, the current provision can act as a blocking mechanism. The Information Commissioner is clear that some public bodies have had difficulty complying with requests by relevant third parties within the two week period and that, in view of this, a change is necessary. On these grounds and on those argued by Deputy Burton, the Minister should give active consideration to introducing the necessary amendments.

Mr. M. Ahern

I have indicated that the existing time limits should not be changed. To extend them would make them too protracted. People can consult with the decision maker and the requester at all times.

Ms Burton

We will agree to disagree on this aspect.

Amendment, by leave, withdrawn.

Question, "That section 22, as amended, stand part of the Bill", put and declared carried.

NEW SECTIONS.

Chairman

Amendments Nos. 89 and 99 are related and both may be considered together by agreement.

Mr. M. Ahern

I move amendment No. 89:

In page 15, before section 23, to insert the following new section:

23.-Section 33 of the Principal Act is amended, in subsection (4), by substituting the following paragraph for paragraph (b):

'(b) Paragraph 5 of the Second Schedule shall not have effect in relation to remuneration in a case where the person who holds the office of Commissioner also hold the office of Ombudsman.’.”.

These amendments arise from an anomaly highlighted by the Information Commissioner in his recent report concerning the interaction between the provisions in section 34 of the main Act, which impose a bar on the commissioner holding any other office which attracts emoluments. An equivalent provision in relation to the Ombudsman is set out in section 2(c) of the Ombudsman Act 1980 and paragraphs (4) and (5) of the Second Schedule to the Freedom of Information Act.

The purpose of amendment No. 89, which proposes to amend section 34 of the principal Act, is to clarify the arrangements governing the terms of appointment, including remuneration, of the Information Commissioner where he or she is also Ombudsman. Under the Ombudsman Act 1980, the Ombudsman receives the same remuneration and allowances for expenses as a judge of the High Court. An Information Commissioner who is also Ombudsman does not receive any additional remuneration, allowances or expenses. The amendment will ensure the Information Commissioner will be able to receive allowances for expenses that arise from his or her duties as Information Commissioner, as distinct from Ombudsman. It will also ensure the Information Commissioner cannot hold any other post that attracts remuneration except the office of Ombudsman.

The purpose of amendment No. 99, which proposes to amend the Second Schedule to the main Act, is to clarify the terms under which the Information Commissioner also holds the post of Ombudsman. This amendment follows on from the proposed amendment to section 33 and will ensure the Information Commissioner cannot hold any other office or employment in respect of which emoluments are payable, except the office of Ombudsman. In addition, he or she cannot be a member of the reserve Defence Forces.

Mr. R. Bruton

This is a sensible amendment which seeks to address an anomaly.

Amendment agreed to.

Mr. Boyle

I move amendment No. 90:

In page 15, before section 23, to insert the following new section:

"23.-Section 34 of the Principal Act is amended in subsection (9), by the insertion of the following paragraph after paragraph (b):

'(c) Where the applicant fails to provide the Commissioner with sufficient information or otherwise fails to co-operate with the Commissioner in the conduct of a review, and where, in the course of the review, access to the records in question has been granted by the public body and where the Commissioner is satisfied that there is no longer any issue requiring adjudication by his Office.’.”.

This amendment is in response to an aspect raised in the Information Commissioner's commentary. However, perhaps against the thrust of much of what he suggested, its purpose is to allow the Information Commissioner discontinue a review if proper co-operation is not forthcoming. In view of the demands on the office, in terms of resources and time, it is a power the Information Commissioner considered to be necessary. The amendment provides for it.

Mr. M. Ahern

I will not accept this amendment. Under section 34(9) of the principal Act, the commissioner may discontinue a review if, first, the application to which the review relates is frivolous or vexatious, second, the application does not relate to a decision specified in subsection (1), in other words, a decision which the commissioner is empowered to review, or, third, the matter to which the application relates is, has been, or will be the subject of another review under this section. Section 34 of the principal Act also provides that in determining whether to discontinue a review under the section, the commissioner shall, subject to the provisions of the Act, act in accordance with his or her discretion. These provisions contain strong grounds for the commissioner to decide that he will discontinue a review.

The amendment seeks to extend the powers of the commissioner to effectively tell a member of the public that his or her request for a review is being discontinued because he or she is not co-operating. The Minister would need to be satisfied that there are strong grounds for doing so and-or that section 34 does not already contain such a power. The Minister is not satisfied that there is sufficient basis to support such an amendment.

Mr. Boyle

The Minister is not taking on board the views of the Information Commissioner. The outgoing commissioner feels he does not have this power or ability. Of the three grounds he mentioned, I failed to hear where nonco-operation of an applicant with the commissioner was deemed to be sufficient grounds. In a sense one can see where the Information Commissioner is coming from in that it could open up within the review process a particular form of a deliberative process itself that would be ongoing and never ending. On those grounds, surely, the Information Commissioner has a case and it should be taken on board.

Chairman

Is the amendment being pressed?

Mr. Boyle

Yes.

Amendment put and declared lost.

SECTION 23.

Question proposed: "That section 23 stand part of the Bill."

Mr. R. Bruton

It has been rarely enough in the past couple of days that we have said improvements might possibly result from this Bill. This is one of those exceptions. The content of this section seems on the whole positive, the only possible question mark being over extending the period for a decision. That is probably realistic, given the experience of some decisions having to take three years. If this is an extension, but one that will be observed and have resources backing it, it is to be welcomed.

It is also welcome that claimed exemptions should be subject to review. The discretion to accept late applications is welcome also. On the whole, I support this section.

Question put and agreed to.

NEW SECTION.

Mr. R. Bruton

I move amendment No. 91:

In page 16, before section 24, to insert the following new section:

"24.-Section 37 of the Principal Act is amended in subsection (7) by the substitution of '€10,000' for '£1,500'.".

This relates to the issue of penalties for non-co-operation. It arose out of the Ombudsman's report. He drew it to our attention that the penalties for non co-operation were extremely low and recommended that the fine in question be brought up to date and set at €10,000 as opposed to the £1,500 in the original Act.

Mr. Boyle

I agree with this amendment. It seems logical to take into account not only the change in currency but also the increase in inflation by putting in place a proper administrative penalty for failing to comply.

Mr. M. Ahern

I will not be accepting this amendment. I am advised by the Attorney General that the proposed penalty of €10,000 would place the offence of failing to comply with the requirement under section 37 of the principal Act in the category of a major offence which could possibly involve trial by jury. While I would obviously regard any failure on the part of a person to refuse to comply with a requirement under section 37 as a serious matter, I am not convinced that a sufficient case has been presented to warrant such a penalty. Section 37(7) of the main Act already provides that a person can be liable to imprisonment for up to six months, which strikes me as the more important deterrent.

Mr. R. Bruton

Is there an upper limit for trial in the District Court, whereby it would not constitute a major offence, and should we go to the upper limit?

Mr. M. Ahern

I will get that information for the Deputy.

Mr. Boyle

Does the principal Act include a clause providing for six months imprisonment as well as a £1,500 fine?

Mr. M. Ahern

It does.

Mr. Boyle

I find it strange that the Attorney General is giving advice of that nature. I would have thought six months imprisonment would imply a major crime. If a Member of the Dáil received a six month prison sentence on foot of the provisions of this Bill, he or she would be disqualified from membership of the Dáil. There seems to be a double standard. The Bill has an imprisonment clause but a low level of fine for the same type of offence.

Mr. M. Ahern

It is the advice of the Attorney General that a penalty of €10,000 would be out of kilter with the offence.

Mr. Boyle

Perhaps on Report Stage the Minister will provide an updated figure, a new higher level, starting at least at the euro equivalent of £1,500, adjusted to take account of inflation.

Mr. M. Ahern

I will obtain the information as requested by Deputy Bruton.

Chairman

Is the amendment being pressed?

Mr. R. Bruton

I shall withdraw it at this stage.

Amendment, by leave, withdrawn.

SECTION 24.

Chairman

Amendment No. 93 is related to amendment No. 92 and we will discuss them together.

Mr. M. Ahern

I move amendment No. 92:

In page 16, between lines 9 and 10, to insert the following:

"(a) by substituting the following subsection for subsection (4):

'(4) An appeal under subsection (1), (2) or (3) shall be initiated not later than 8 weeks after notice of the decision concerned was given to the person bringing the appeal.',".

This amendment would extend the time allowed for lodging an appeal of a decision of the Information Commissioner to the High Court from four to eight weeks. This will benefit all parties considering such an appeal and it is being moved on the advice of the Attorney General who has advised during the passage of the Bill that the opportunity should be taken to extend the period to eight weeks to allow sufficient time to consider fully what can be very complex issues before making a final decision on whether or not to proceed with an appeal.

On amendment No. 93, I understand that it relates to an apparent anomaly highlighted by the Information Commissioner in his recent report relating to appeals to the High Court involving records that are released in part. Officials in the Department of Finance have been in contact with the Office of the Information Commissioner in relation to this matter. I gather the matter is more complicated than originally thought. I am therefore not in a position to accept this amendment. Further consideration is being given to the issue in the Department of Finance.

Mr. R. Bruton

One of my concerns is that the Minister, in the course of our earlier debate on the certification procedure, pointed to the opportunity for appeal to the High Court for people adversely affected by the certification of deliberative process and so on. It is not clear that such an appeal to the High Court is easily facilitated. Section 42 of the original Act lists a certificate issued under section 25. That is the ministerial certificate. It does not include certificates issued under any of the other new provisions being brought in. I seek clarification of the Minister for Finance's discussion of the opportunity for appeal of these full and final certificates by Secretaries General to the High Court. Do we need to amend section 42 further than envisaged by the Minister in order to ensure that these new certificates will also be capable of appeal to the High Court on a point of law?

Ms Burton

The insertion of a right to go to the Supreme Court is very positive. The problem is that for an individual the thought of making a trip to the Supreme Court could be the cause of many sleepless nights. In effect, therefore, for the most part this right of appeal to the Supreme Court, which is good in principle, will, I suspect, be used by public bodies and by members, employees, managers or chief executives of public bodies who are routinely indemnified by the public body for the cost of the Supreme Court decision. In principle it is a good idea.

Amendment No. 93 in my name is similar to Deputy Bruton's amendment. It arises from the report of the Information Commissioner relating to section 42 on appeals to the High Court. The Information Commissioner points out that in some cases because the process is complex that the time within which one can appeal a case to the High Court - the Supreme Court seems a bit unreasonable because that process would involve a longer period - would have elapsed. The time within which one can appeal a case would have elapsed before a requester can get all or part of the file in question. I am open to suggestions by the Minister or his officials as to how this matter might be reasonably addressed. In a case where access or partial access is afforded to the person bringing an appeal, I propose that such information should be provided not later than four weeks after access to the records concerned is afforded. This is a highly technical point. We all hope that not many matters sought under the Freedom of Information Act will end being the subject of cases brought to the High Court or the Supreme Court.

If it were possible to address the Information Commissioner's point on this matter and the Minister were to table an amendment on Report Stage which would address this reasonable point, I would happily withdraw this amendment. The Information Commissioner stated in his report that his office was aware of one case where a High Court appeal was made "on the blind" in such circumstances. It is difficult for a person to undertake an appeal to the High Court where he or she does not have access to some or all of the relevant records.

Mr. M. Ahern

The Minister was referring to the judicial review in the context of Secretaries General in the eventuality that a Secretary General would exceed his or her power. The intention is clear in relation to Secretaries General certificates. They are final with no right of review during the deliberative process. The matter to which the Deputy referred——

Mr. R. Bruton

We are not making provision for a person adversely affected to appeal the unreasonable use of this certification under section 42. The person would have to make a separate judicial application for a judicial review. Why would the Minister not simply make provision for the right of appeal to the High Court by the person affected?

Mr. M. Ahern

The decision is final with regard to Secretaries General certificates and there is no right of review during the deliberative process.

Ms Burton

The Minister made that clear in the debate. Some people might end up taking a trip to the European Court of Justice, but that is a different matter.

Mr. M. Ahern

The Deputy made the point that this is not an easy matter to resolve and Department officials are still examining——

Ms Burton

I will happily withdraw my amendment if, on Report Stage, the Minister has found a way of addressing this matter.

Mr. M. Ahern

I cannot give the Deputy that guarantee.

Ms Burton

Will the Minister undertake to consider it? I will resubmit the amendment on Report Stage.

Amendment put and declared carried.

Amendment No. 93, by leave, withdrawn.

Section 24, as amended, agreed to.

NEW SECTION.

Mr. M. Ahern

I move amendment No. 94:

In page 16, before section 25, to insert the following new section:

25.-Section 43 of the Principal Act is amended by substituting the following subsection for subsection (3):

'(3) In the performance of his or her functions under this Act, the Commissioner shall take all reasonable precautions (including conducting the whole or part of a review under section 34 or an investigation under section 36 otherwise than in public) to prevent the disclosure to the public or, in the case of such a review, to a party (other than a head) to the proceedings concerned of information specified in paragraph (a) or (b) of subsection (1) or matter that, if it were included in a record, would cause the record to be an exempt record.’.”.

This amendment has been suggested by the Information Commissioner. Section 8(5) of the principal Act provides that notice of a decision on an FOI request that is issued to a requester should not include information which, if it was included in a record, would cause that record to be exempt. A similar provision is found in section 14 of the principal Act in relation to notices issued following an internal review. The Information Commissioner expressed some concern that he is not governed by a similar provision and this amendment addresses what appears to be an inconsistency in the original Act.

Ms Burton

I am happy to accept this amendment.

Amendment put and agreed to.

Mr. R. Bruton

I move amendment No. 95:

In page 16, to delete lines 27 to 35.

This amendment deals with a new protection the Minister is bringing forward to prevent the disclosure of briefing material for Ministers when they go before the Houses of the Oireachtas or a committee of the Oireachtas whereby we will no longer have access to additional briefing material. The only justification I heard for this proposal was from the Minister for Justice, Equality and Law Reform who said that much of the material he was given would not be repeatable in public and could not be believed and that this was being brought in to protect the public from the fictional writings of public servants. That did not convince me at the time and having reflected on it further I am still not persuaded that is the reason for this proposal.

I have seen these briefing papers to assist Ministers. They envisage possible questions and how they might be dealt with. They are useful from a public interest point of view to further enlighten discussion about the question being legitimately raised by the parliamentarian. At the time the parliamentarian may not have had the opportunity to raise the questions dealt with, but such a briefing allows further reflection on other aspects of the issue. I do not understand why this protection should be imposed. To repeat what the Minister said, this does not in any way interfere with the workings of Cabinet or with the quality or time for reflection Ministers need to make sober decisions on issues of major public policy. This is simply about concealing and minimising information that is made available to the Dáil. If the question is not asked, the information will not be given.

The motive behind this proposal is unhealthy. If Ministers need support from their public servants to envisage possible supplementary questions and the sort of detail that should be revealed in respect of those supplementary questions, that is legitimate information and it should be possible to access it under the Freedom of Information Act. Such access exists and such briefings have often being released to the public. I am not aware of any case where the public interest was damaged by the discovery of additional briefing material. I cannot understand the motivation for this proposal. This is entirely separate from any consideration of good governance that the Minister has been using to defend his changes elsewhere. This is about a shift back into the political era of secrecy where Ministers treat the House with contempt and if the right question is not asked, the information will not be revealed. That is not a healthy move back in that direction.

I have heard criticism from Members on all sides of the House of Ministers of whatever hue who did not reveal information because the question was not asked in the right form at the time. That creates the unhealthy atmosphere where parliamentarians have to anticipate and use specific wording in questions if they are to get correct answers. Question Time is already a bit of a joke because Ministers can quite freely refuse to answer questions. The Ceann Comhairle is not obliged to force them to answer questions correctly, accurately or helpfully. The Minister's amendment re-enforces the poor quality of Question Time and public debate that can happen in the Dáil. This proposal should be rejected by the committee, be it by Fianna Fáil or Opposition members. This is a bad day's work. Hopefully, it will not commend itself to either the Government benches, which are empty at present, or the Opposition.

Caoimhghín Ó Caoláin

I support Deputy Bruton's proposal. According to the Information Commissioner, no case has been referred in this instance so the practice is already there. The Minister is proposing in this subsection to introduce a further reason to refuse briefing notes on the responses of Ministers to oral or written questions from Deputies or Senators. These should be accessible and open to Members of both Houses as the case arises. The deletion of the subsection ensures the continuation of the current position where access is allowable, even where the quality of responses is often poor.

Mr. Boyle

I support the amendment. This clause represents a diminution of the ability of Members of the Oireachtas to effectively represent the people who elected them and for them to interact in relation to the work we do on their behalf. On these grounds, the clause should not be part of legislation that claims to provide better democratic tools in our society.

I also agree, with respect to the nature of the questions process in the Dáil, that we constantly receive anodyne responses. The real answers to Members' inquiries are probably included in briefing notes which are not reached because questions are either in a particular form or there has not been an appropriate supplementary question. There are other practices in the House whereby even simple questions are removed from the Order Paper on the encouragement of certain Departments, not because of the direct answer that can be given, I suspect, but because information contained in briefing notes might become available.

We are setting dangerous precedents as to what information comes from Departments and how it becomes available. On these grounds, what is proposed in this Bill is wrong and the deletion suggested by Deputy Bruton is an obvious and correct course of action. I hope the Government rethinks its attitude to this section.

Ms Burton

This section is probably one of the most obnoxious features of this Bill. Members of the public often do not appreciate how limited the procedure of parliamentary questions is. A Minister has three minutes to read a reply to the House and the Opposition Member gets approximately another two minutes in which they can ask one or two supplementary questions.

I might ask a question, for example, about the national pension reserve fund, the Government's investment of €7 billion in it and the losses incurred so far as a result of the collapse of the equity markets, something that is important for the economic life of this country and pension provision for citizens in future decades. That generates, at maximum, a six to seven minute discussion in the Dáil. It is a set format and a cat and mouse game. It is up to the clever Member of the Dáil to ask the right question. New Members of the Dáil must learn how to turn a statement into a question because otherwise they will be cut off by the Ceann Comhairle. It is part of the parliamentary learning experience that one must try to put clever questions within an extremely short timeframe while a nimble Minister can dance away over the horizon by basically saying nothing. This was the point Justice Hamilton made at the end of the £75 million beef tribunal, that if the right questions had been asked and adequate and complete answers had been given, there would have been no need for the beef tribunal.

Up to now, as a result of the Freedom of Information Act and also by custom and practice, Ministers often give, on request and under the Freedom of Information Act, the background briefing notes he or she received for answering the parliamentary question. Normally, when answering a parliamentary question, such as the question on the national pension reserve fund, the Minister would have seven or eight supplementary sheets of information on which the civil servants anticipate the seven or eight questions I could possibly ask in the two minutes allocated to me. In reality I can ask two questions. I am free to ask the questions and, by and large, the civil servants give the Minister seven to ten potential briefing notes.

When replying to leaders' questions or on the Order of Business the Taoiseach has a big file in front of him and if somebody asks about health, he goes to the file on health and rattles off the statistics. It is a parliamentary game or art form. In fact, it is a tremendous credit to the Taoiseach that, despite not having been a member of an undergraduate debating society, he has tremendous skill at doing it. The point is, however, that it is a dangerous skill. It basically deprives the public, the Opposition parties and Government backbenchers of essential information. Afterwards one is told that one did not ask the right question, so one was not told the right answer.

The briefing papers will be put off limits under the Freedom of Information Act. I will give some examples of how the Act has been used over the last year or two. I have looked for the background briefing documents in relation to the national pension reserve fund, where the fund has invested its millions of euro and the investment policy of the fund, and on the special savings scheme. I got the documents through the Freedom of Information Act; it was the only way I could get the information. In both instances I got important information about the cost of the schemes and the losses being sustained as a consequence of the fall in the equity market. This information has been important for public debate.

It is particularly reprehensible that the Progressive Democrats have not, to my recollection, attended a single session of the committee's four days of discussions. I have not seen a single member present.

Chairman

In the interests of clarity, no member of the Progressive Democrats is a member of this committee.

Mr. Boyle

The Minister for Finance is a Progressive Democrat.

Ms Burton

I remember Deputy McDowell climbing a pole during the election campaign and promising to be a watchdog on Fianna Fáil. One way of doing that is to arm the watchdog with information. In fact, if the watchdog gets enough information, it can turn into a bloodhound and serve democracy well. The bone for the watchdog and the bloodhound is in subsection (a) where information requested by Opposition parties will be put out of bounds. The dog will be killed and stuffed, however, by the second part of the section because the really serious information to which we are entitled anyway - the supplementary information concerning parliamentary questions - will no longer be provided to us. It is a pity that the Progressive Democrats in their appointed role as watchdogs have been missing for this part of the caper. To continue the canine analogy, it is invidious that Fianna Fáil and the Progressive Democrats should attempt to muzzle Parliament by refusing to supply information which has made the quality of debate in this country far better as a consequence of the information being available.

Due to how well the economy has done and because of our need for significant infrastructure, the Government is spending large amounts of taxpayers' money. In order for Parliament to operate properly, however, it is critical for us to have information about that expenditure, for example, whether it goes on health, education, the Garda Síochána or the national pension reserve fund. There is no point in providing the information six months after the end of the year to which the information refers because at that stage we will only be investigating past history through political archaeology.

Parliamentary questions enable us to put queries to the Minister for Finance about the economic issues of the day and how Ministers generally are performing in their Departments. For example, in the ongoing debate over the Government's failure to fulfil its promises about new or refurbished schools, all the Opposition spokespersons routinely ask the Minister for Education and Science about expenditure on such schools that were promised by Fianna Fáil. From now on, however, an Opposition spokesperson who poses questions will not be able to obtain the supplementary file which shows the real spending levels and where the money is being spent. Instead, the Minister has put up a puny website which lists eight or nine spending levels. It resembles an algebraic construction, which apparently provides information but is designed to confuse people even more. In that context, therefore, the right of parliamentarians to ask parliamentary questions is even more important, as is the right to obtain background information. The Minister's decision to place essential supplementary information off limits is a bad day's work.

In his arrogance, the Minister for Justice, Equality and Law Reform, Deputy McDowell, decided he did not wish to be associated with some of the supplementary information his civil servants give him by way of briefing notes because it is so poor. How arrogant that is. If that is what the civil servants do, then that is what they do. If a briefing note is particularly poor it is up to the Secretary General of that Department to say to the civil servant involved, "Look, that was not terribly useful to the Minister".

Two months ago, I tabled a question to the Minister for Justice, Equality and Law Reform seeking details of the allocation of community gardaí in the greater Dublin area. That is a big issue for working class communities in the city. The Department, however, is unable to give me that information. Our spokesperson on justice will be asking for the information in an oral question, unless I get the information soon, yet the Minister will be putting the background information out of our reach. He will claim, meanwhile, that this is because of the incompetence of civil servants who have provided him with a poor reply. The Civil Service is to be the patsy and because the briefing notes may not be up to the Minister's standards he will not give us any information. That is pathetic. In fact, it is Orwellian for the Minister to say that since civil servants' briefing notes are so poor he will not even release them. It is a fantastic excuse for hiding his incompetence and failure to deal with policing issues and, thus, escape proper scrutiny by Dáil Éireann. Consequently, the Labour Party is opposing resolutely the entire section.

Chairman

Before I call on the Minister to respond, do members wish to continue or do they want a short sos? We can continue if people wish to.

Ms Burton

A five minute sos and then we will continue.

Mr. Boyle

There might be a natural break soon.

Chairman

We are due to go to 1 o'clock and then come back from 2 p.m. to 3 p.m.

Ms Burton

Supposing we break now for five to eight minutes and then work through until we finish.

Mr. R. Bruton

To deal with these amendments.

Ms Burton

We will take a short break and then finish.

Chairman

We may not be able to work through lunchtime because we have to check the availability of Ministers. We will still break at 1 o'clock.

Ms Burton

Perhaps you could consult, Chairman, because we could then give an undertaking that we might finish at 1.30 p.m.

Chairman

I will call on the Minister of State. We are dealing with amendment No. 95.

Mr. M. Ahern

The effect of this amendment would be to remove the exemption of parliamentary briefing papers from the scope of the Act. I cannot accept the amendment. Ministers have direct accountability to the Oireachtas and its various committees. In order to be briefed fully prior to appearing before either House, Ministers require the full range of views and opinions from officials and advisers on the various complex issues involved, expressed in a totally candid and frank manner. It is clearly not in the public interest for Ministers to be in receipt of anything less than frank advice. The same argument applies in the case of briefing material for PQs. Parliamentary questions are answered in the Dáil and the answers are a matter of public record. Other documents and notes are often attached to give the Minister a wider understanding of a particular issue. In my view it is completely inappropriate that FOI should be used to get access to these records because the PQ is what matters.

Mr. R. Bruton

That is an incomprehensible reply. Obviously the Minister of State was handed the reply but did not have a chance to consider it. Briefing material to back up parliamentary replies will not give entirely new advice on matters that may be under deliberation, which is the usual defence for when one needs frank advice. This is purely political advice as to how to get out of a slightly awkward situation. The advice tendered to Ministers in the backup to parliamentary questions, or when appearing before a committee, could rightly be denied if it was part of the deliberative process. Under all these sections one could deny access to a certain part of the information on the grounds that it was compromising a deliberative process. The notion of frank advice being revealed that should not be revealed is quite a bogus defence. Of course Ministers need a wider understanding but so does the House. If material is brought to the Minister's attention that puts a particular question in a wider context, there is no reason why the House should not have access to it if it is sought under the FOI legislation. The Minister of State is mistaking accountability with the deliberative process. Everyone has accepted the need for some protection for Ministers in respect of the deliberative process, albeit that we would place the marker at different points on the pitch. We would like to see the presumption of more information being made available. In this instance, however, the background papers to parliamentary replies are in no way privileged. This is not advice of a kind that could in any way prejudice the interests of the State or of Government in taking sound decisions. The Minister of State ought to find a new writer for his replies because that does not stand up to scrutiny. I do not know from where this has arisen. Will the Minister give examples of his contention that public servants have had to suppress frank advice for fear it would be discovered when Ministers answer questions?

I see no evidence for the necessity for this change. It will deny the public access to a range of worthwhile information that will elicit and shine more light on decision making processes within Departments. The Minister has got this seriously wrong and I cannot accept his defence of his proposal.

Caoimhghín Ó Caoláin

The Minister is proposing to perpetuate minimalism in terms of the replies to parliamentary questions, be they oral or written. In one case I was given false information in response to a question I raised. Deputy Burton referred to the schools situation. Last year, a reply to a question I asked about a school in my constituency indicated there was no application for an extension and improvement works. Yet, it was included in the list of schools due for improvement and renovation which the Minister subsequently circulated. How can these two pieces of information be reconciled?

My experience of the parliamentary question process is, at best, frustrating. The Bill will copperfasten a climate of withholding essential information. We are called Deputies for the good reason that we deputise on behalf of those who elect us. We have a right to public information and are part of the means of access. The flow of dissemination is a two way process, but in practice all the information is in a one way direction. I do not know if other Deputies have had similar experiences, but I have found it very frustrating. The Minister proposes to enshrine this approach and attitude, to give it credence and allow it continue in perpetuity. I abhor this unacceptable proposal. I will oppose it, and again on Report Stage if the opportunity is afforded me.

Mr. P. McGrath

This provision is one of the more obnoxious elements in the Bill. It will remove access to information in relation to replies to parliamentary questions. Approximately four or five years ago a parliamentary question was submitted - I understand Deputy Rabbitte was involved - on the cost of flying the Government jet. The response produced a figure indicating the cost was on the low side. As I recall, David Andrews was the then Minister involved. It subsequently emerged that all the briefing material prepared by the civil servants included a figure that differed dramatically, to the extent that it was a multiple of the figure in the reply. There was much subsequent debate.

The public should be appraised of how replies to parliamentary questions are compiled. Yet, section 25 will remove public access to that information. Recently I asked a parliamentary question on the cost of supervisors to second level schools and was told that the information was not available to the Department. I subsequently submitted a FOI request for the documentation and was given dramatic information on the various schools involved, which appeared in the national newspapers.

I also received information, which surprised the schools, on the returns they made on the supervisors. The public was entitled to this information, especially as it contained dramatic differences. As I recall, in one school the cost of supervision was €450 per pupil per annum, whereas it was €100 in a similar school in the same area. It is important that the public knows such information, including what is happening to taxpayers' money and where there is value for money. The information I sought was refused in a reply to a parliamentary question, but I obtained it under a FOI request.

If the amendment is accepted this kind of information will probably be restricted or precluded from public disclosure. Taxpayers will not be properly informed on how their money is spent. If I recall correctly, a few years ago a response to a parliamentary question indicated that the average cost of answering such questions was £150 per question. I am sure the cost has escalated. On that basis it is surely important that taxpayers should be informed of how their money is being spent. All the back-up material used in compiling replies to such questions must also be made available.

It is clear from the files prepared in the compilation of replies to parliamentary questions that civil servants are thorough and do a good job. On one occasion I saw their work on a reply to an Adjournment matter on a school. The file included information on a parliamentary question I had asked on the school and briefing material for the Minister in his reply. It would be a shame if access to such material was to be denied. I know the Minister of State, Deputy Michael Ahern, for a long time and I am surprised and disappointed that he would want to suppress such information. His profession is similar to the Chairman's.

Mr. M. Ahern

The Deputy is talking rubbish.

Ms Burton

How will such information be accessed?

Mr. P. McGrath

The explanatory memorandum states that the purpose of the section is to restrict the principal Act from "applying to parliamentary briefing records including records created for the purpose of briefing for parliamentary questions."

Mr. M. Ahern

The Deputy can submit a FOI request seeking back-up material on the reply to a parliamentary question.

Mr. P. McGrath

Will the background briefing material prepared for the Minister be provided?

Mr. M. Ahern

The factual information will be provided.

Mr. P. McGrath

Will the background briefing material be provided?

Mr. M. Ahern

That information has always been provided.

Mr. R. Bruton

It is now proposed to exempt such information.

Ms Burton

The Minister of State should read the Bill.

Mr. M. Ahern

The Deputies are trying to suggest there is a culture of secrecy and obfuscation.

Ms Burton

The Minister of State should take the trouble to read the Bill.

Mr. M. Ahern

The Deputies, some of whom were former Ministers and Ministers of State, should know that the information they are concerned with is available under reply to written parliamentary questions or a FOI request.

Mr. R. Bruton

The Minister of State is inaccurate.

Caoimhghín Ó Caoláin

It seems that the explanatory memorandum is as misleading as some of the replies we received to parliamentary questions. Can the Minister of State be serious and read what the explanatory memorandum actually states? It states, "The purpose of this amendment is to restrict the principal Act from applying to parliamentary briefing records including records created for the purpose of briefing for parliamentary questions, (whether oral or written)." How more precise can one be than that?

Mr. M. Ahern

It is not saying that the information will not be available.

Ms Burton

Could the Minister enlighten us?

Chairman

In the interests of clarification, it is just the records which were prepared for the parliamentary question briefing. The records still in the Department that are not part of that file are still available.

Ms Burton

Then this is an Orwellian suggestion. Then one would need to be divinely inspired in the future to know what is the likely briefing, under perhaps 100 different headings, which a Minister might have received in approaching a parliamentary question. Therefore, it really is "catch me if you can" territory and it is grossly unfair to the workings of the Dáil, to the Members of the Dáil and to the public who elect the Dáil. I think we will have a vote on this to check if there is a Progressive Democrats Member in the House so they can check on their own handiwork.

Mr. M. Ahern

If a Deputy looks for information on a school, for example, that information can be accessed through the FOI Act even though it is part of the briefing.

Ms Burton

That would be a separate FOI request.

Mr. R. Bruton

That would be a separate FOI request. We are looking for all briefing material that Ministers get in support.

Mr. M. Ahern

But one can get the observations that the information——

Mr. R. Bruton

How? One does not know this information.

Ms Burton

What he is saying is absolutely untrue. Earlier I gave the examples of the SSIAs and the national pension reserve fund. The National Pension Reserve Fund Act 2000 gives a public reporting mechanism where, like many other companies or bodies, it reports on an annual basis, three to six months after the end of the year. That is when I would get the information on the national pension reserve fund. That is political archaeology, not getting information about a current public issue. I am not able to get information under the FOI Act about that.

I will give a further example from this week. The Minister himself created the SSIA scheme and unwisely decided to allow two kinds of SSIA investment, a personal deposit and an equity linked investment. This week the many tens of thousands of equity linked investors are getting the bad news popping in their letter boxes that by and large their equity linked investments have gone south. Due to the collapse of the equity markets, in some cases the investments are worth less than half of what they were previously worth. In future if there is a parliamentary question to the Minister for Finance dealing with SSIAs, I will get a four minute answer. I will want to get the facts and figures, but I will be barred under this Bill from getting them and there is no mechanism available. I have done FOI requests repeatedly in this area, I know how to operate the Act and this is a major restriction.

Mr. M. Ahern

We should go back to the matter in question.

Chairman

There is a misunderstanding here.

Mr. R. Bruton

I am absolutely clear on this. If, for example, we were debating the Finance Estimate here and the Minister had briefing material going through the various figures pointing out different problems and difficulties in those figures, there is no way we would know these aspects unless we happened to ask the right question. We will not be able to frame an FOI request unless we decide to go through every section of his Estimates brief and ask for briefing material on X and Y, in other words, unless we generate in respect of each Department about 30 or 40 FOI requests.

The Minister comes in here with a briefing file with notes appended. It deals with issues of concern and difficulty. It is clearly in the public interest that we would have access to that, rather than having to go on this cat and mouse chase to get the background briefing material relating to Estimates, for which we are supposed to be responsible and which we must vote through each year. This is supposed to be a meaningful debate. Of course I know that the Government has reduced this to a completely ridiculous debate. It shoves it through in an hour or two, and there is no real scrutiny. However, this is trying to close down scrutiny and close down the opportunity for scrutiny. That is the only motivation behind this.

If the Minister was so free in his belief that all this information would be discoverable and would be freely available, then why not release the briefing material? Why impose this barrier? It is the Minister who is trying to close this in. Is the Minister of State telling us that it is a worthless restriction in which he has no faith but he thinks there is some civil servant behind him trying to push it? That is ridiculous. This is politically motivated. It is not coming from officials. It is about the Government trying to conceal information which would be of benefit to the House and to our ability to hold Government to account, as is our duty as representatives elected by the people.

Mr. M. Ahern

I disagree 100% with that.

Mr. P. McGrath

Why are there restrictions?

Mr. M. Ahern

On the point about the time allowed for parliamentary questions made by Deputy Burton earlier, personally I think we should go back to the old system but then it is up to the Committee on Procedure and Privileges to look at the structure of Question Time.

Ms Burton

Does the Minister of State agree that roughly up to eight minutes and, at the outside, ten minutes is the maximum time allowed, both for the questioner and for the Minister to respond?

Mr. P. McGrath

It is six minutes.

Ms Burton

Sometimes if it is a matter of great import, the Ceann Comhairle will allow a few more minutes.

Mr. M. Ahern

I would, but that is for a different forum to decide.

Ms Burton

The Minister gives three or four minutes of an answer with the questioner having two to three minutes. That is the way it works.

Mr. M. Ahern

That was decided by discussion between the parties.

Mr. R. Bruton

Will the Minister of State answer the question about the Estimates? Does he agree that our duty is to hold Ministers accountable for Estimates? The Ministers have briefing material which they are not willing to release to us. The long and the short of it is that they want us to be handicapped in the approach to scrutiny of Estimates.

Mr. M. Ahern

Deputy McGrath quoted the costs of the jet. That must be cleared up. What happened is that the costs of running the jet which were referred to in that question was the actual cost——

Mr. P. McGrath

Of fuel per hour.

Mr. M. Ahern

Exactly.

Mr. P. McGrath

Come off it.

Mr. M. Ahern

The rest of the costs were standing charges. They would have applied whether or not the jet was used.

Mr. R. Bruton

That is the sort of cant which we want to expose. That is what we are here to expose and what they want to conceal.

Mr. M. Ahern

That was the answer that the Deputy gave and he agrees with that 100%.

Mr. R. Bruton

We now know clearly the motivation for all this.

Ms Burton

It did not include the chocolates per flight.

Mr. R. Bruton

The cat is out of the bag.

Mr. P. McGrath

If anybody from the media is listening, I can already see the cartoons which will appear tomorrow. Is the Minister of State seriously saying that the cost involved in running a car is only what you pay to fill up the tank?

Mr. M. Ahern

If one rented a car, one would only pay the rental. One would not pay the capital charge.

Mr. R. Bruton

What about the lease charge?

Caoimhghín Ó Caoláin

Is he saying they will not now purchase a new fleet?

Mr. M. Ahern

I would just say "Go in a taxi".

Ms Burton

I think the following was obtained under FOI. Last year the Taoiseach's Department spent €13,000 on taxis in Dublin. I do not know what they were all doing in the taxis because running up a taxi bill of €13,000 in Dublin takes quite an effort.

Is the Minister of State saying that if the Government decides to lease the new jet, the only charge for which it will be billed is the cost of the fuel? That is amazing. That is a new theory of economics. This could get him a Nobel prize in economics.

Mr. M. Ahern

I never mentioned the cost of fuel. It was Deputy McGrath mentioned the cost of fuel.

Chairman

Are the Deputies suggesting that anything raised in Parliament is now to be restricted under FOI? That is the logic of what they are saying.

Ms Burton

No. Nobody has said that. We referred to the briefing and background material.

Mr. R. Bruton

The section states, "for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both such Houses or any subcommittee of such a committee (including such proceedings in relation to questions put by members of either suchHouse . . . ". It is a blanket close down——

Chairman

A close down of the record given to the Minister. The records in the Department not given to the Minister can be still released.

Mr. R. Bruton

This committee will soon debate the Estimates for the Department of Finance. Is the Minister of State saying we need to submit a freedom of information request in anticipation of that debate seeking information on telephones, staff, postage and all issues of relevance and concern? We should have access to ministerial briefing notes so that, when the Minister is advised there is a problem with the running of some aspect of his Department, we can have access to that information and tease it out, which is part of our job of scrutiny. Instead, the Minister of State wants to ensure that we receive the mushroom treatment and are kept in the dark.

Mr. M. Ahern

Deputy Richard Bruton knows he has access to voluminous amounts of information. He would never be in the dark.

Ms Burton

May I give the Minister of State an example? I have a letter from a member of the public who in recent months submitted a request under the Freedom of Information Act for information on the advice given to the Minister for Finance about reining in public spending from the beginning of 2002 to the general election that year. I do not know the gentleman. He just wrote to me and his letter is very interesting.

The subject matter of the request was something any of us might be inclined to ask the Minister later this year or next year in the run-up to the Estimates. An amazing list was received in reply relating to everything concerned with public expenditure controls. Deputy McGrath features frequently on the list. An indication of how the new amended Act will operate is that the gentleman who sought the information was sent a request from the Department of Finance for payment for this information of €2,723 with a deposit of €544 required before any of the information would be released.

Roughly five or six oral parliamentary questions are allowed and an unlimited number of written questions three days a week. Does the Minister of State suggest that we can submit general freedom of information requests for this information? The gentleman in question did not request unreasonable information. It is in the public domain. Obviously deliberations of Government would be excluded. If that is the new costing structure towards which the Department of Finance is clearly working, it would not be possible for political parties or anyone else to do what the Minister of State suggested.

Chairman

In the interests of clarification, they are charges levied under the 1997 legislation. They have nothing to do with the Bill.

Ms Burton

The Chairman and the Minister of State both said this information is available under the Freedom of Information Act. While that is correct, during the course of a normal parliamentary week there are five or six oral parliamentary questions to the Minister answering which relate to current issues. If the Opposition were to submit freedom of information requests on these general issues, and there are general matters covering such requests, for example, the cost of the war, which are broad and not even as precise as the Government jet, the cost to the Opposition and the media would be so enormous as to be utterly prohibitive. There is a Labour Party amendment to deal with that.

Chairman

It is an amendment to change the 1997 Act.

Ms Burton

By putting this information off-limits, a regime will be created where information will be so expensive that we will live in a two-tier society where information is concerned, much like health and education. Much of this information by its nature is broad because it concerns the operation of the education system, the economy as a whole or the health system. What the Minister of State said does not stand up to any type of serious, thoughtful scrutiny.

Mr. Boyle

The Government has argued throughout this process that there are other means of gaining information. While there might be indirect forms of obtaining certain information, specific sources of information would be excluded by this provision. A briefing note would contain such advice as to how information should be presented or why presenting information would be deemed to be sensitive and, if given in the course of a more general briefing, would help inform whoever sought that information to ask more appropriate questions as part of the ongoing process of scrutiny. This is the gist of why this change is being proposed. It is to stop people from having access to information that would inspire the right questions to be asked. It has nothing to do with anything other than that. I hope the Minister of State is honest enough to admit that.

Chairman

The Minister of State has made his position clear. Is the amendment being pressed?

Mr. R. Bruton

Yes.

Amendment put.

The Committee divided: Tá, 5; Níl, 7.

Tá

• Boyle, Dan.
• Bruton, Richard.
• Burton, Joan.
• McGrath, Paul.
• Ó Caoláin, Caoimhghín.

Níl

• Ahern, Michael.
• Fleming, Sean.
• Lenihan, Conor.
• McGuinness, John.
• Nolan, M. J.
• O’Keeffe, Ned.
• O’Malley, Fiona.

Chairman

We agreed to break from 1 p.m. to 2 p.m. but there is still some debate to take place. I do not know if the Minister is available before 2 p.m. and we cannot establish that. Will we stick to a break between 1 p.m. and 2 p.m. and we will be finished by 3 p.m.?

Ms Burton

We could start at 1.30 p.m.

Chairman

I cannot give a commitment on that. We will have to send word to committee members.

Ms Burton

Could the committee bell be sounded?

Chairman

We will schedule for 2 p.m. I cannot give a commitment on contacting the Minister; I may or may not be able to do so. The best thing to do is to come back at 2 p.m.

Sitting suspended at 12.55 p.m. and resumed at 2 p.m.

Chairman

I welcome the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Fahey.

Caoimhghín Ó Caoláin

I move amendment No. 96:

In page 16, line 35, to delete "writing))." and substitute the following:

"writing)),

and

(b) in subsection (2), by inserting after ’this Act’ the following:

'(with the exception of section 17)'.".

Chairman

Amendment No. 96 has already been discussed.

Caoimhghín Ó Caoláin

So I cannot re-enter any of my arguments.

Chairman

No, the arguments have already been made. Is the amendment being pressed?

Amendment put and declared lost.

Question proposed: "That section 25, as amended, stand part of the Bill."

Caoimhghín Ó Caoláin

We dealt with this section in some detail in relation to access to briefing notes for Ministers in response to parliamentary questions, written and oral. I wish to re-affirm that the arguments already presented are substantive enough for Deputies to object to section 25. A further detail relates to costings supplied to political parties by the Department of Finance in preparation of the issue of manifestos in advance of elections.

It is my view that costings of differing proposals sought by political parties should be in the public domain. There is no advantage and no need for embarrassment if specific ideas costed by the Department are opened to media and public scrutiny. I have no difficulty with any such inquiries. I have been facilitated by the Department, as have all other political parties, in the preparation of costings of varying ideas that would directly impact in terms of policy and proposals allied to a pre-election manifesto. I am of the view that this information should not be restricted. It further informs the wider body politic and the citizenry of the raft of ideas which political parties are considering in response to society's needs and the importance of working towards a more equitable approach to the delivery of services. No political party should be concerned about their respective requests being offered into the public domain.

Allied with my earlier position vis-à-vis the restrictions now to be applied and already voted on by Government in relation to ministerial briefings in preparation for parliamentary questions, I argue that section 25 should be opposed.

Ms Burton

I have made clear the opposition of the Labour Party to both paragraphs in section 25. The purpose of the section dealing with political parties is a pretence dreamed up by somebody in the current Government that the Government wished to be helpful to the Opposition. If that were true, it would continue to allow the Opposition to obtain the background documents to parliamentary questions, a matter we have already discussed.

This is essentially a dishonest amendment designed to gain the complicity, apparently, of Opposition parties. The Labour Party rejects it. I do not know what this will imply down the road. It is one of those seemingly innocuous amendments that down the road may have a wider meaning than is currently known. The second part of section 25 which relates to not providing background information on parliamentary questions will have an insidiously negative effect on our democracy and on the accountability of Parliament, the Dáil and Ministers.

The suggestion made by the Minister of State, Deputy Michael Ahern, that political parties could get such information by applying directly for it, is the type of "catch me if you can" and "ask the right question and you might get the right answer" Government that led to the beef tribunal. The cost regime to be introduced would make it absolutely prohibitive for the average political party to do. The Labour Party reiterates its strong opposition to section 25.

Mr. R. Bruton

I strongly oppose this section. I differ slightly in regard to the first half of the section. I am satisfied we do not need this section. Political parties need an element of confidentiality as they prepare election manifestos. I was in that position prior to the last election. It is important for a political party to be able to get costings independently done. Undoubtedly an issue in any general election is the basis on which a party costs its programme. One must be able to go in confidence and get costings independently done and then vary your proposals to modify costings if you see fit. It does not make a great deal of sense if the sort of natural discussion that goes on before a party decides on its position is to be made available, primarily, to one's competitors in the political marketplace.

Such arrangements are, in my view, already protected by section 26. In the run up to the last general election, when there was no section 25(a), Ministers had no access to the costings we requested from the Department of Finance nor had any other party who might have entered an FOI request because the head of a Department would have used section 26 to say the information was given in confidence and that he or she did not regard it would serve the better interests of the public by granting this preliminary information. The head of a Department could quite properly decide to grant that information after a party had published its manifesto and final conclusions had been reached. There would, at that point, be public interest in the costings underpinning such manifestos. That might bring a little more realism because much of the interest in the last general election related to parties charging and counter charging as to what was the basis of costings. That was a rather fruitless debate.

The deliberative process of a political party in deciding what it will adopt as its programme should be protected and remain confidential. However, once the party has decided and published its programme for Government that access should be made available. That would be a sensible way to proceed in respect of costings. I am happy that existing sections provide sufficient protection of that system. The existing protections were certainly not found wanting during the course of the last general election. I strongly reiterate my opposition to the second section we debated, the subject of the earlier amendment which was voted on before the suspension. For that reason I continue to oppose the section firmly in regard to the second paragraph.

Mr. Boyle

There is an element of nod and wink about this section. It suggests the Government, having used the Bill to hide what it can in terms of its deliberations, is giving the impression that other political parties have something to hide as well. I certainly do not accept that.

The consultation that takes place between Opposition parties and Government Departments is a fairly recent phenomenon. The Minister for Finance, to his credit, allowed the facility to be made available for the last election for all political parties in regard to costing manifestos. Further to his credit, he has suggested extending it during the life of the Government in terms of further costings regarding alternatives to Government proposals. Would that other Ministers had the same attitude, but we are basically talking about costings provided by the Department of Finance.

As part of a consultation exercise, some of this would be a deliberative process anyway. There will always be an element of "what if" and questions going over and back between political party spokespersons and civil servants. However, we need some way of ascertaining whether a political party, even in Opposition, is getting it spectacularly wrong. The presentation we got from the NUJ was clear on this point.

I will use my own party as an example and take something off the wall and see how this process would apply. For instance, if we suggested that there should be a proposal to repatriate all former Aran islanders from Connemara, it is so obviously ludicrous that it would have a potential political fallout for even suggesting it. If we made that suggestion and sought Government or civil servant advice as to how it might be implemented, that is something that could be ascertained under freedom of information legislation. To put in a provision that would prevent that type of information getting into the public domain does not serve the democratic system properly. On those grounds I oppose what the Government is trying to do here.

Mr. Nolan

I support the Minister. I am glad Deputy Boyle has acknowledged that the current Government, and the Minister for Finance in particular, made much information available to the Opposition parties prior to the general election. I support the Minister in continuing down this particular road.

In regard to the second part of section 25, the background information on parliamentary questions, my view is that if an Opposition Deputy is sufficiently armed with the knowledge of what he requires, he will be able to get whatever information he requires. Obviously this will only be at Question Time in the Dáil. I do not see any great difficulty with the second part of this proposal.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Fahey)

I am surprised at the opposition to this proposal from Sinn Féin, the Labour Party and the Green Party. They are really speaking against their own interests in that the purpose of the amendment is to safeguard what has become an important practice, whereby political parties have been able to have their policy proposals costed in confidence by the Department of Finance. That has proven to be of great significance particularly at times when my party was being accused of making proposals which were not costed or were unrealistic. There are still some parties that are into that scene and for that reason they might have a purpose opposing this. It has been an important contribution to political debate over the years.

There are compelling public interest arguments in favour of the Department of Finance providing this independent objective advice as opposed to having others provide it. Without the protection of this amendment this practice would not continue and that would not be in the public interest. I reject the Labour Party's claim that it would have an insidious negative effect. I cannot see how. It would be in the interest of the Opposition parties to retain the ability to have this confidential information.

It is a matter for the party if, having received the information, it wants to publish the costings. I cannot see any reason why there is a disadvantage in protecting the parties. The Information Commissioner, for instance, is asking the question at the moment as to why such information is not being released. While Deputy Bruton referred us to the protection provided by section 26, and this protection is there, this provides the absolute certainty that has not been there up to now. I agree with what Deputy Bruton said. It is an important provision for Opposition parties.

Ms Burton

Provisions already exist in the Act in regard to information which is given in confidence. When a person makes a request to a head of a section in this regard, he or she is perfectly entitled, under the existing provisions of the Act, to refuse the information given in confidence. We have no objection to the subsequent release of information when the process of evaluation has finished and the information has been disseminated and made widely available.

The point is whether we allow access to the full facts of what was said or to selective spin. That is what this is about. In other words, if all of this goes totally off record, the political party in giving out information about the view of the Department of Finance or some other Department will subsequently be able to put its own spin on it. The fact that the information is now subsequently obtainable under FOI means that the temptation to spin it exclusively to the benefit of the party, or even to be misleading, is gone. There is no appeal against this exemption. It is now gone and cannot be appealed which is a retrograde step.

Deputy Nolan commented that there is adequate time at oral parliamentary Question Time to elicit information. An oral parliamentary question is six minutes long. Exceptionally it may be longer if two questions are combined. Certainly, he cannot think that in three minutes of a ministerial answer a finance spokesperson can get detailed information in regard to complex economic issues like the special savings investment accounts, the national pension reserve fund etc. If he thinks that any Minister, in this or any other Government, can give sufficient information in a three minute reply and that the questioner, the Opposition spokesperson, can elicit sufficient supplementary information in a two minute supplementary question I wish he could show me an example. He knows it is not possible to do it. The purpose of the second part of the section is to close off an important area of parliamentary inquiry and parliamentary accountability, which is regrettable.

Caoimhghín Ó Caoláin

The Minister used the phrase "important provisions" in regard to the Opposition parties. Of course it applies to all the political parties including the coalition Government partners. The thinking behind this particular provision runs contrary to the spirit of the substantive Act of 1997. In an open political system there is nothing to be feared by any political party in having open access to what is or has been considered. Open access is part of the dissemination of information. It better informs the political process and all opinion and it better informs each of the political parties as competitors. It is not just a Government versus Opposition issue. It is not an important provision, in fact what the Minister and the authors of this are really saying is that it is an important protection. It is not a protection that I wish to have. I do not believe it serves good consideration of policy in advance of elections - policy is something that is ongoing and developing. It is what one subsequently stands for in one's manifesto that matters. We have seen many examples of that of the past few months where matters in manifestos have not stood the test of time. That would be of much greater import to the citizenry than the elements of consideration prior to finally opting for a manifesto text. Section 25 should be opposed and withdrawn for all the sound reasons argued.

Mr. Fahey

In respect to Deputy Burton's contribution, like Fine Gael, the Labour Party entered into a confidentiality agreement with the Department of Finance before the last election and the Tánaiste announced privately that her party wished to do the same. There is a case before the Information Commissioner where he is being asked to release information. He is leaning towards the release of such records. This clause is to protect the confidentiality clause into which Deputy Burton's party entered. There is nothing to stop political parties releasing information if they wish.

I again emphasise that point in respect of what Deputy Ó Caoláin said. There is nothing to stop Sinn Féin at any time releasing information in relation to its policies. That is something about which we would be most anxious to hear more.

Caoimhghín Ó Caoláin

They are all there. The Minister of State can read them any day.

Question put and declared carried.

SECTION 26.

Ms Burton

I move amendment No. 97:

In page 17, line 4, after "applicant" to insert "or if the application is made by a member of the Houses of the Oireachtas".

This is a particular concern of the Labour Party in the context of the changes which have been introduced in the Bill. As we have just discussed, the capacity of Members of the Dáil, particularly members of the Opposition, to obtain detailed information through access to the supporting papers to parliamentary questions under FOI, is now gone. The Minister has indicated that in future - this was clear from the parade of Fianna Fáil backbenchers and the members of the high level review group - a new charging regime which is already provided for in the existing Act, will be under way. People will be charged very substantial amounts for making requests. As it stands now and at the time the Bill was introduced, the tendency has not been to charge high fees on the principle that it is better to give the information and to facilitate a sense that the citizen can make information requests. We heard endlessly from Fianna Fáil backbenchers about the same case - although there have been about ten such cases - where people made several requests for a very wide trawl of information and some of these requests verged on the vexatious. As the Information Commissioner pointed out, there are substantial and significant powers in the Act to deal with that but he believed Departments were not doing so.

There will now be a new regime of charges. The Minister of State was not present earlier when I read out a letter I received from a person in the south-west who made a reasonable inquiry seeking records on the advice given to the Minister for Finance about the control of public expenditure from the beginning of 2002 up to the time of the general election last May. That is a perfectly reasonable request. It might be surprising that an individual would seek such information but it is exactly the kind of information an Opposition spokesperson would routinely and correctly request. The reply received by the applicant listed an unbelievable number of papers, including large numbers of parliamentary questions. It declared most of the interesting material to be off limits but I imagine from the descriptions that in many cases much of the information would be granted on appeal to the Information Commissioner. If the Minister, Deputy McCreevy, was present, I am sure he would impart much of this information without creating a song and dance.

The person involved was given a bill last month for €2,723 for this information and was asked to pay a deposit of €544.70 before the Department even considered undertaking the search. The Department informed the applicant that 130 hours of Civil Service work time was involved in retrieving the information. This will be another way to choke off and kill this Bill.

Eithne Fitzgerald framed the Bill and she and her civil servants at the time visited a number of jurisdictions. Freedom of information legislation has been in operation in the United States since the time of the Vietnam war. The general tendency there has been that significant charges are a huge deterrent to the public in seeking that information. This Government desires to inhibit people making comments or observations on planning matters where there has been a charge struck down by the European Court but which the Government has not yet addressed.

This Labour Party amendment proposes at the very least to give the right to apply for information under FOI to Members of the Houses of the Oireachtas. The Minister's amendment No. 98 may seek to address this issue. There are five Opposition spokespersons and three periods of Dáil time a week given to answer approximately five parliamentary questions. That is 15 questions answered per week. If the line was to be taken that full cost - not even marginal cost such as we heard about in the case of the Government jet in the reply in the House this morning - was to be applied, the burden on Opposition parties would be enormous. There also would be a burden placed on freelance journalists who do a lot of work. They will not necessarily be reimbursed by their employers.

This committee also heard a presentation by an organisation called The Wheel, which represents voluntary and community organisations. Many people in voluntary organisations work for nothing on a genuinely voluntary basis. The new regime being introduced is clearly indicative of the choking off of the right to access information by what I regard as deterrent charges.

Caoimhghín Ó Caoláin

I shall speak to section 26, as time will not allow us to break down this. I oppose this section, which facilitates the introduction of what can be regarded as a blanket fee for seeking access to non-personal information. It affords the Minister the opportunity to determine or prescribe a fee. It will not only apply to accessing a non-personal record but will also permit a fee to be prescribed in respect of an application for internal review or an application to the Information Commissioner under section 14.

The submission to the committee by The Wheel organisation, which represents the voluntary and community sectors, made a strong case that the introduction of this fee would be a further impediment to the voluntary and community sectors carrying out their functions. It would be a deterrent and would result in those, who are giving public service for the public good in the voluntary and community sectors, being restricted and being less likely to use the opportunity that FOI has afforded them heretofore. They described it as a "tax on civic action", which sums up exactly what it would be for those sectors. This is a very important point.

The Minister's own amendment offers no elucidation. It refers to the fact that fees of different amounts may be prescribed for different classes of requester or applicant. The inference here is that there will be a hierarchy of application and it is impossible to say whether Deputy Burton's amendment is to be accommodated in any measure because - as we discuss freedom of information - there is no information provided. Rather than drawing a further differential, this further restriction to access to information should not be accommodated. There should not be the further impediment of a fee on not only the voluntary and community sectors but on any interested party across the board which may at any time and for whatever reason seek access to non-personal information.

During the course of these four days of deliberations, particularly this morning, fees of an absolutely prohibitive nature have been quoted to us. Such fees undoubtedly serve the sole purpose of closing down the application in the first place because many people will be unable to come up with the wherewithal to follow through their democratic and civil right to access information. This is fundamentally wrong and section 26 should be opposed.

Mr. R. Bruton

I do not support the idea of upfront fees. The section already provides that a Department can charge an economic cost. The Minister for Finance has told us that in practice Departments have not always applied those rules and have taken a more public-spirited approach to requests. That appears to be changing. I have had similar correspondence to Deputy Burton about a different case where the Department of Finance immediately sent out bills and sought deposits upfront. This effectively uses the existing powers in a very officious way compared to what was done heretofore.

The dual approach of applying existing rules officiously and now producing this upfront fee has the hidden message that people exercising their rights as citizens to acquire information represent a nuisance and should go away. That is not the spirit in which this Act was developed. I recognise the need for cost recovery provisions, but these should be used in a reasonable way as Departments have done heretofore. Along with the upfront fee, political instruction should not be given about the officious use of these powers to make information inaccessible. This is the wrong approach and seems to come out of the same principle that has informed the other amendments we have seen in the Bill, which is to go back to a code of omerta, secrecy, not releasing information and trying to protect instead of inform the public.

Mr. Boyle

At the earlier hearings of the Joint Committee on Finance and the Public Service I do not remember an example being cited of any other jurisdiction where the principle of economic recovery and stand-alone fees existed. The high level Civil Service group talked about Canada and Australia, which have a single nominal fee. I am opposed to the current application of the economic cost recovery fee because it has been abused. The idea of imposing a charge for civil servants' time on a member of the public who has made a legitimate request that has not been ruled out as vexatious is out of order. Civil servants are doing the job they are paid to do.

I have cited other examples of the retrieval of environmental impact statements when not only was the staff time included but also the commercial as opposed to the actual cost of the photocopying. The spirit of the provisions in the principal Act is being flouted. I fear that not only will there be a type of apartheid with different levels of fees for different categories, but the fee will rise over a period of time to increase the disincentive. We should not adopt the principle of a stand-alone fee. If a fee is to exist, we should consider the Canadian or Australian model of a single low level fee not necessarily linked to the economic costs.

Mr. Fahey

It is clear the 1997 Act intended that fees should be charged, including to Members of the Oireachtas. This section attempts to reflect that each request varies on cost from €400 to €600. Deputy Boyle mentioned Australia, where it costs $300 for an appeal. As the Minister has made clear in setting the fees, he is keen to strike an appropriate balance and not to discourage responsible use of the Act. While I appreciate the concern that has been expressed, every effort is being made.

In response to the comments of Deputy Bruton, there is no intention on the part of the Department to change the approach that existed in the past, which was responsible and reasonable. The Act provides for all categories apart from personal information to be charged. With the assurances given by the Minister, there is nothing to worry about.

Mr. Boyle

Will the Government take on board the recent decision of the European Commission on the application of a planning fee and how this discourages people from taking part in the planning process?

Mr. Fahey

I cannot answer that question.

Chairman

That is different legislation.

Mr. Boyle

It is the same principle. It was introduced in different legislation to have the same effect. It was talked about on administrative grounds and the European Commission has ruled that it was imposed not for administrative convenience but as a method to discourage use of the system.

Mr. Fahey

If one were to allow an exception for Members of the Oireachtas, as Deputy Burton has suggested, we would be back to the old days when we were all abusing parliamentary questions. The making of such an exception would mean Deputies and Senators would become the conduit for all kinds of interests. Those of us who have been here long enough will recall the significant efforts that were made over the years to stop us from abusing parliamentary questions. The efforts have been successful, by and large, although such abuse still takes place. If we make the changes proposed by Deputy Burton we will return to such a scenario.

Ms Burton

The Minister of State's answer is disingenuous in the extreme. I gave an example of a fee of almost €3,000 being suggested to a member of the public with no indication that the request involved was vexatious. The Minister of State's colleague, Deputy Finneran, spoke at length about Sweden, but information about the economic advice given to finance Ministers is routinely available in Sweden and other countries. It is published on departmental websites so that it is routinely in the public domain. It is not necessary to use the freedom of information legislation to acquire such information in those countries. If trawling requests for a broad range of information are considered vexatious, perhaps it is time for the Department of Finance to do what colleges, universities and health boards throughout the country have done - put information of a routine nature that relates to financial issues, such as advice and background briefings, on the Internet. That is the way to deal with it.

The Minister of State has suggested the public should be faced with a charge of €3,000, which is an enormous charge on a person such as a freelance journalist. Multiple requests to a number of Departments often have to be made by freelance journalists under the "catch me if you can" system, to get an overview of the issue concerned. Under the new charging regime, the minimum charge for most requests, in effect, will probably be about €60. That is the best way of protecting democracy where information is freely available. I do not think it is an abuse of the Dáil if Deputies can assist members of the public in an area where the Government is closing off and choking the public's access to information. We are simply trying to protect people from what the Government is doing in closing down information sources in the first instance.

The Minister of State may say the Minister for Finance may choose to release information, but I stress to him that this Government chooses to release lots of stuff on the basis of the 82 spin doctors it employs. It is the right of the public and the Opposition to have access to the actual information, free from the spin and the frills the Government wants to attach to it. The onerous system that is being put in place by the Government will, rather like the planning charges, seek to limit people's involvement in the processes of their own Government.

Caoimhghín Ó Caoláin

The Minister of State said in his last response that we have nothing to worry about, even though we are feeding into the creation of a two-tier system of citizenship. Who will be affected by these fees? Who will they prohibit first? It will be the least well-off in society. Those who can afford to take out a cheque book and write a cheque for whatever amount is requested will not be dissuaded in the same manner as those whose rights of citizenship are based on their entitlement to citizenship and not on the extent of their bank balance. When one introduces charges, one excludes the least well-off in society in the first instance. I have worries in relation to the many people who are challenged by trying to meet the costs of daily living. The introduction of mandatory fees, to be paid when the request is made, will undoubtedly close off an entitlement of citizenship to which they are as entitled as any other member of the community.

Mr. Fahey

In relation to the example cited by Deputy Burton, if the charge was as she has said, then obviously——

Ms Burton

I can give the Minister of State the letter from the Department of Finance.

Mr. Fahey

——the cost was very considerably more than the charge. The Act clearly set out that there would be a charge. The charge mentioned by the Deputy comes under——

Ms Burton

It is dated 28 March.

Mr. Fahey

——the 1997 Act.

Ms Burton

I said to the Minister of State that the charging system has been operated in a new manner up to now. I have made many freedom of information requests, some of which were of quite a detailed nature, as a Member of the Oireachtas and when I was neither a member of a local authority nor the Dáil. I have never been asked to pay a fee, even though I was given an extensive amount of information, extending to many pages, in some cases. My general understanding - the Information Commissioner's response was in the same vein - is that public bodies have exercised a great deal of discretion up to now. It seems to many people, from the information we are getting, that a signal has been sent out to start charging.

Mr. Fahey

It was not a question of exercising discretion. Public servants simply did not apply the charges because the effort of calculating the full charges for the hours spent collating information would have meant more work.

Mr. P. McGrath

The Minister of State is scraping the barrel. How long would it take to calculate the charge? Would it take five minutes?

Mr. Fahey

It would take a very considerable amount of time if one had spent hundreds or thousands of hours——

Ms Burton

Thousands of hours?

Mr. Fahey

Yes.

Ms Burton

Thousands of hours?

Mr. Fahey

Yes, there have been cases where literally thousands of hours were spent——

Ms Burton

The Information Commissioner has plenty of powers to deal with such vexatious requests.

Mr. Fahey

There were not treated as vexatious requests.

Ms Burton

That is because certain members of the Civil Service were too cowardly to deal with them.

Mr. Fahey

A considerable amount of work will be involved if one wishes to acquire details of a Minister's diary, for instance, as records will have to be examined and those that are not relevant will have to be removed. That is not a vexatious request, however. Applicants have the right to appeal the level of charges and the commissioner is the final arbitrator in that regard.

Chairman

I would like to draw proceedings to a conclusion, as it is almost 3 o'clock. Is amendment No. 97 being pressed?

Ms Burton

Yes.

Amendment put and declared lost.

Mr. Fahey

I move amendment No. 98:

In page 17, between lines 4 and 5, to insert the following:

"(d) Fees of different amounts may be prescribed under paragraph (a) in respect of different classes of requester or different classes of applicant.”.

Amendment put and declared carried.

Question put: "That section 26, as amended, stand part of the Bill."

The Committee divided: Tá, 7; Níl, 5.

Tá

• Fahey, Frank.
• Fleming, Seán.
• Glennon, Jim.
• Lenihan, Conor.
• Moloney, John.
• Nolan, M. J.
• O’Keeffe, Ned.

Níl

• Boyle, Dan.
• Bruton, Richard.
• Burton, Joan.
• McGrath, Paul.
• Ó Caoláin, Caoimhghín.

Question declared carried.

Chairman

As it is 3 p.m., I am required, in accordance with the order of the Dáil of 3 April 2003, to put the following question: "That the amendments set down by the Minister for Finance and not disposed of are hereby made to the Bill and in respect of each of the sections undisposed of that the section, as amended, is hereby agreed to and that the Title of the Bill is hereby agreed to."

The Committee divided: Tá, 7; Níl, 5.

Tá

• Fahey, Frank.
• Fleming, Seán.
• Glennon, Jim.
• Lenihan, Conor.
• Moloney, John.
• Nolan, M. J.
• O’Keeffe, Ned.

Níl

• Boyle, Dan.
• Bruton, Richard.
• Burton, Joan.
• McGrath, Paul.
• Ó Caoláin, Caomhghín.

Question declared carried.